Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person.
When a patient dies or suffers some mishap, there is a tendency to blame the doctor for
this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.
Cause of action for a claim of Medical Negligence:
The cause of action for negligence arises only when damage occurs, since damage is a
necessary ingredient of this tort. In a complaint of medical negligence, the burden is on
the complainant to prove breach of duty, injury and causation. The injury must be
sufficiently proximate to the medical practitioner’s breach of duty. In the absence of
evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking.
Standard for judging Negligence:
The standard to be applied for adjudging whether the medical professional charged has
been negligent or not, in the performance of his duty, would be that of an ordinary
competent person exercising ordinary skill in the profession. The law requires neither
the very highest nor a very low degree of care and competence to adjudge whether the
medical professional has been negligent in the treatment of the patient.
Medical negligence thus comprises of the following constituents: (1) A legal duty to exercise due care on the part of the medical professional; (2) failure to inform the patient of the risks involved; (3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (4) if the risk had been disclosed, the patient would have avoided the injury; (5) breach of the said duty would give rise to an actionable claim of negligence.
Medical Negligence & Courts:
It has been held by the Supreme Court of India that Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually relied on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge.
A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
Compensation in a case of Medical Negligence:
The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference to another.
He would be liable for medical negligence only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field. For instance, he would be
liable if he leaves a surgical gauze inside the patient after an operation or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
About the author:
Gaurav Sharma is the founder of Easy Kanoon & is also the founder of MedNLaw,
India’s first exclusive medico-legal advisory. To know more about medical negligence
write to us at email@example.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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